Examination #2: Constitutional History


Open book; exam to be done in class Thursday, October 23rd; group studying encouraged.


Members of the SRP v. the State of Ohio (1938)


            By 1935, the Great Depression had pushed unemployment rates to their highest rates in American history.  Food riots had broken out in large cities and unemployed workers had destroyed the plants and mills of their former employers, but generally the nation had responded with innovative political programs and quiet determination to see the adversity through.  Most states had passed laws to create jobs, assure subsistence supplies, and regulate business, but in Ohio, these laws were matched with measures designed to curb labor unrest and control urban violence.


            In 1932, after a series of bitter labor disputes in the textile and iron and steel industries, the Ohio legislature had passed the "Ohio Criminal Syndicalism Act." 


Section 1.  It is illegal to …


            1. display, preach, publish, or state anything with the intent or tendency to bring the government of Ohio (or any state organization) into contempt or infamy; or that would subject its elected leaders (or other state employee) to ridicule or disrespect (unless such statements or displays were demonstratively true).


            2. display, preach, publish, or advocate anything that calls for or suggests the use of force or violence against the government of Ohio (or other state organization), or that suggests the use of force or violence to carry out a violation of the laws of Ohio.


            3. take any action to bring about the overthrow of the government of Ohio (or disrupt any state organization) by force or violence or to further an effort to violate the laws of Ohio.


            4. to conspire together with members of a political action group, labor union, or other syndicalist[1] organization to do any of the above.


Section 2:


            1. All public employees must sign an oath declaring they have never been, or if they have been, are no more, a member of a group covered by Section 1 of this act.


            2. Failure to sign this oath subjects an employee to immediate termination of employment. 


Section 3:

            Violation of any section or subsection of this act can be punished with fines of up to $1,000 and a jail sentence of no more than ten years.



            In 1932, the Socialist Revolutionary Party (SRP) established a small commune near the campus of Ohio State University.  There the two dozen or so members lived, published a weekly newspaper (“The Red Flag”), held meetings, taught informal classes and gave free weekly lectures on their political ideals and the economic problems of the world.  The apartment building in which the commune was housed flew a red flag from the roof atop the flag of the Soviet Union.  Most of the members were students or faculty at Ohio State University.


            In 1936, the University, in a cost cutting move, fired most of "non-essential" clerical and service workers, and assigned each student some of the clerical and service responsibilities at the University.  The clerical workers established picket lines around the library, the eating facilities, and several of the dorms, and they were joined by a number of the undergraduates.  The SRP published an attack on the University administration calling them “fascist dogs” for engaging in “criminal activity” against the workers; the attack, in an issue of “The Red Flag” was widely distributed on campus.  The next day many more students and faculty joined the picket lines, and when others tried to cross the lines to attend classes, scuffles and fighting ensued.   The State (on behalf of the University) went to court to seek an injunction[2] blocking both the picketing and the publication of “The Red Flag.”  The court (local state court exercising equity jurisdiction) granted a temporary injunction, and enjoined all picketing on the college campus itself and all future publication of “The Red Flag.”   The University also dismissed six professors who has not signed the oath and who were photographed in the picket line.  Two others were fired who had signed the oath.


            Nonetheless, the SRP published another issue of “The Red Flag” denying the right of the “running dogs of capitalism plutocracy” to “stifle the legitimate voice of the revolutionary people.”  The next day, after more speeches by student and faculty strike leaders, yet more students joined the picket lines to support the clerical workers.  The picketing was peaceful until about 2pm when the city police arrived.  Carrying a copy of the injunction, they broke through the picket line trying to find, they later stated, members of the SRP.  A riot followed. Fifteen students were injured, two police officers were seriously beaten, and student and faculty leaders as well as leaders of the clerical and service workers were arrested.  Subsequently, they were tried, convicted, and sent to jail for the assault on the police.


            Shortly thereafter, the state police raided the SRP commune.  They confiscated the commune flags, teaching materials and political pamphlets, and arrested all the commune members, three of them students and four of them former faculty members (all of whom had been fired under Section 2 of the act).  They were charged with violations of all four sub-sections of section 1 of the state syndicalism act (see above) and for violation of the injunction against publication.  The state also asked for a permanent injunction that blocked publication by the SRP of its pamphlets and “The Red Flag.” At the trial, the following evidence was produced:


            1) a police informer who had attended classes at the commune stated that these classes dealt with theories of revolution, strike tactics, and the evils of capitalism;  The teachers were "very disrespectful of America and of government in general."  They read books by Russian and German revolutionaries (in translation) and discussed which authors provided the best inspiration and tactics for bringing about the inevitable overthrow of capitalist states.


            2) identification by police officers of three of the student strike leaders as students in classes at and frequent visitors to the SRP commune, presumably members.  Similar evidence was presented of the involvement of the arrested former faculty members.


            3) photograph indicating that student and faculty strikers were carrying a red flag similar to the one flying above the commune.   A pamphlet which described the flag as the "flag of revolution" and the "banner that will bring down capitalist fascism."


            4) pamphlets, found in the possession of several of the arrested and convicted strike leaders, published by the SPR.  These pamphlets contained the following statements:


--         "Workers of the World Assert Your Rights!  Let the Capitalist Oppressors Know you will Resist with Armed and Militant Struggle"


--         "Private Property Belongs to the People....Reclaim the University in the Name of the People"


--         "The Path to Liberty is Sprinkled with the Blood of Heroic Revolutionaries"


--         "Capitalist Government is an Obscenity Forced under the Working Class by the Rich and the Powerful"


            5) political broadsides, published by SPR and also found in the possession of both student and faculty strike leaders, attacking, by name, the President of the University and the governor of the state and calling for their "overthrow"


            6) rough transcript of a speech given by one former faculty member of the commune two days before the strike on the Ohio State campus.  In the speech, the SRP member called on his audience to "end now the oppression of the working class by whatever means are necessary" and to "follow the path of historical inevitability--make the revolution now!"


            The government argued that members of the SRP had conspired since 1932 to create a revolutionary socialist movement that involved students from Ohio State University; that they had encouraged disrespect for the flag, the nation, the state, and government officials; that they had directly provoked the violence that occurred during the strike; and that, while not arrested for violent activity themselves, many of those who had followed their leadership had been.  While not all members of the commune had been equally active in bringing on the strike, the government argued all had participated in the conspiracy and were this equally to blame.  They also felt the evidence was sufficient to justify a permanent injunction against SRP publications.


            Defense lawyers for the SRP responded that no member of the commune had actually participated in the strike or been involved in the fighting.  Members under oath acknowledged teaching the classes (see #1 above), but contended these were history classes, not primers in revolutionary action.  Speeches and pamphlets they contended were within their free speech rights under the 1st Amendment and 14th Amendment.  They further contended that strikes did not constitute a threat to the government, and that except for police involvement, the strikes had been peaceful.  They claimed the injunction was unconstitutional.  They asked that the faculty members be reinstated as the act was unconstitutional on its face.  (and as applied).


            Government lawyers suggested that the defendants had no 1st Amendment protection, but if the judge ruled they did, asked that he instruct the jury that free speech rights were not protected if the defendants intended to bring about a crime.  Defense lawyers objected.  The judge RULED THAT THE 1st AMENDMENT WAS APPLICABLE TO CHARGES BROUGHT UNDER SECTIONS 1,2, & 4 OF THE ACT; AND THAT THE NORMAL STANDARD OF CRIMINAL INTENT, AS THE GOVERNMENT REQUESTED, SHOULD BE APPLIED BY THE JURY.  The government also responded that the danger to the state and to the University was serious and substantial, as witnessed by the criminal convictions of strike leaders and the disruption of University life.


            The jury convicted all the defendants. THE judge sentenced them to three years in jail and fines of $1,000 each.  He also issued a permanent injunction against SRP publications.  The faculty members request for reinstatement was rejected. Their convictions and the injunction, on appeal, were upheld by the Ohio Supreme Court.  An appeal was then taken to the US Supreme Court.  Before the Supreme Court, the two sides argued the 1st Amendment issues.


            Write the opinion in Members of the SRP v. the State of Ohio (1938); or write a dissent that you think Brandeis or Holmes might have written (this is not to imply that Brandeis and Holmes would not have been part of the majority, but only that if the majority upheld some or all of the state charges, they would most likely have been the dissenters).




            You may use in class any notes, books, or handouts from this course (but not material from other courses, etc.).  You are encouraged to study with other students, and may work on outlines together if you wish.  You may not bring a prepared answer to class.


            Your opinion should do the following:


            1. Your opinion must reflect an "approach" to the free speech issue consistent with opinions from this era (1900s-1950s): bad tendency, reasonableness of regulation, balancing of interests, clear and present danger, the Hand reformulation (see Dennis), etc.


            2. Open with a precise statement of the importance of the case and a clear definition of the issues.  You need not recite the facts in detail.


            3. Support your opinion drawing on other cases (precedents).  You may use any opinions from the early 1900s through the Dennis (and if you wish) Yates decisions in the 1950s.  You may use Brandenburg to support a dissent. But your main texts should be Schenck, Abrams, Gitlow, Whitney, and Near.  You may quote briefly from these opinions to support a point, but your opinion should be in your own words (A key phrasing of an issue or a particularly crucial statement about free speech or the government's right to control certain speech is appropriate for citation).


            4. Support your opinion with reference to the policy implications or underlying values you are affirming.  You may again quote briefly from other opinions or from documents, but you should use your own words.  If you support free speech, why? You may wish to consult the Holmes’ Common Law reading on “attempts” or his dissent in Lochner.  If you accept repression of speech, why?  Develop your argument from a point-of-view that fits the historical era of 1900s-1950s.


            5. Where relevant, engage the facts of the case.  Not all the facts above are relevant, and many may not be relevant to the approach you take, but when they are, make sure that you spell out the relationship between the particulars of the case and your opinion.


            6. Argue the case as consistently as you can from the point of view of a court in this era.  You may wish to approach the case as you believe one of the judges of that era might have (Holmes, Brandies, Learned Hand), but you need not select a particular judge. 


Your name should only go on the cover of the blue book.  Do not use your name on an exam page.  Opinions are graded anonymously.







[1] Syndicalism came be assumed to mean a theory that labor ought to form a general union whose goal is ultimately to control all productive processes.

[2] An injunction is a court order to stop specific actions.  Normally, legal requests to redress "harm" occur after the harm has occurred.  If the "harm" is "irreparable," that is, it cannot be addressed after the fact by monetary damages or corrected in other ways, then a court may issue a (preliminary) injunction (using its "equity" jurisdiction) to stop the harm immediately, and may follow with a permanent injunction after considering the evidence (the "merits") of the situation.  An example of this was a request by the Nixon administration to issue an injunction to stop the Washington Post from publishing the "Pentagon Papers."  This was an improperly obtained report on how American had become involved in the Vietnam War; the individual who obtained the report gave it to the Post.  The government argued that publication would damage national security (and that criminal action against the individual who took the report was not a remedy) -- that is, that the harm was "irreparable").   Injunctions in the 1920s and 1930s were often issued by state courts against strikes (until peaceful strikes were legalized under the National Labor Relations Act).